CHIMANLAL MALHOTARA Vs. UNION OF INDIA

JUDGEMENT

(1.) In this petition for a writ of certiorari, the petitioner calls in question the validity of a notification dated 12th August, 1997 purported to have been issued under Sections 4, 17(1) and 17(4) of the Land Acquisition Act notifying for acquisition a total extent of 194 bighas and 19.5 biswas for the public purpose of setting up a Sports School near Ghevra Modh under planned development of Delhi. Since the petitioner's land out of the total extent so notified is limited to 44 bighas situated in Khasra Numbers 79/22, 23, 24, 25, 85/2, 3, 4, 5, 6, 7, 8, 9, 15/1, 26, 27 of the said village, the present writ petition shall deal with the impugned notification only to the extent the same relates to the petitioner's land.

(2.) Appearing for the petitioner, Mr. Sethi, learned Senior Counsel, urged a short point in support of the petition. He submitted that although the impugned notification purported to invoke Section 17(4) of the Land Acquisition Act, yet in the absence of a proper order of the competent authority supporting the said invocation, the notification would be legally unsustainable. Relying upon the decision of the Supreme Court in Union of India and Ors. v. Mukesh Hans, (2004) 8 SCC 14, Mr. Sethi argued that no only should there be a notification invoking Section 17(4) of the Act dispensing with the conduct of the inquiry under Section 5A, but the same should be supported by a proper order passed on due and proper application of mind by the competent authority directing such dispensation. He submitted that the competent authority had not, in the instant case, applied its mind, recorded its satisfaction or passed an order giving reasons for dispensing with the inquiry under Section 5A of the Act. The impugned notification to the extent the same purported to invoke Section 17(4) to dispense with the inquiry was, therefore, bad in law. He further submitted that since the notification itself suffers from an incurable defect, all subsequent proceedings conducted by the respondents on the basis thereof including the declaration under Section 6 of the Act and the award under Section 11 thereof were non est in the eye of law and had to be quashed.

(3.) On behalf of the respondents, Ms. Luthra made a three-fold submission before us. In the first place, she argued that the petitioner has not raised the ground now urged before the Court to challenge the impugned notification. She urged that the grounds set out in the petition proceeded on the basis that an order dispensing with inquiry under Section 5A of the Act had indeed been made, but the same was, according to the petitioner, legally bad. Alternatively, she submitted that since possession of the land had been taken over by the respondents, no matter in ignorance of an interim order passed by this Court forbidding any such action, the petitioners could be suitably compensated by payment of compensation/damages for such illegal occupation. In support, she placed reliance upon the judgment of the Supreme Court in R.L. Jain (D) by LRs v. DDA and Ors., JT 2004 (3) SC 272. She lastly argued that the Lt. Governor has, in the present case, applied his mind and come to the conclusion that it was a fit case in which the inquiry under Section 5A ought to be dispensed with. She drew our attention in this regard to the contemporaneous official record to show that the notification in question had been issued after due and proper application of mind, as required by law.